U.S. v. Pungitore, 89-1371
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Citation | 910 F.2d 1084 |
| Docket Number | No. 89-1396,No. 89-1409,No. 89-1404,No. 89-1372,No. 89-1401,No. 89-1397,No. 89-1371,No. 89-1395,No. 89-1393,Nos. 89-1371,No. 89-1402,No. 89-1400,No. 89-1446,No. 89-1403,No. 89-1448,89-1371,89-1372,89-1393,89-1395,89-1396,89-1397,89-1400,89-1401,89-1402,89-1403,89-1404,89-1409,89-1446,89-1448,s. 89-1371 |
| Parties | , 31 Fed. R. Evid. Serv. 115 UNITED STATES of America v. Anthony PUNGITORE, Jr., Appellant inUNITED STATES of America v. Joseph GRANDE. Appellant inUNITED STATES of America v. Francis IANNARELLA, Jr., Appellant inUNITED STATES of America v. Phillip NARDUCCI. Appellant inUNITED STATES of America v. Salvatore SCAFIDI. Appellant inUNITED STATES of America v. Nicholas VIRGILIO. Appellant inUNITED STATES of America v. Charles IANNECE. Appellant inUNITED STATES of America v. Salvatore Wayne GRANDE. Appellant inUNITED STATES of America v. Joseph PUNGITORE. Appellant inUNITED STATES of America v. Frank NARDUCCI, Jr., Appellant inUNITED STATES of America v. Ralph STAINO, Jr., Appellant inUNITED STATES of America v. Salvatore J. MERLINO. Appellant inUNITED STATES of America v. Nicodemo SCARFO. Appellant inUNITED STATES of America v. Joseph CIANCAGLINI. Appellant into 89-1372, 89-1393, 89-1395 to 89-1397, 89-1400 to 89-1403, 89-1409, 89-1446 and 89-1448. . Argued and Submitted under Third Circuit Rule 12(6) |
| Decision Date | 25 April 1990 |
Michael J. Kelly, Asst. Defender, Defender Ass'n of Philadelphia, Federal Court Div., Philadelphia, Pa., for Anthony Pungitore, Jr.
Willis W. Berry, Jr., Philadelphia, Pa., for Joseph Grande.
Robert E. Madden, Philadelphia, Pa., for Francis Iannarella, Jr.
Stanford Shmukler (argued), Philadelphia, Pa., for Frank Narducci, Jr. and Phillip Narducci.
Christopher G. Furlong, Springfield, Pa., for Salvatore Scafidi.
Stephen P. Patrizio (argued), Dranoff & Patrizio, Philadelphia, Pa., for Nicholas Virgilio.
Louis T. Savino, Jr., Philadelphia, Pa., for Charles Iannece.
Hope C. Lefeber, Philadelphia, Pa., for Salvatore Wayne Grande.
Peter Goldberger (argued), Philadelphia, Pa., for Joseph Pungitore.
M.W. Pinsky, Westmont, N.J., for Ralph Staino, Jr.
Edwin J. Jacobs, Jr., Jacobs & Bruso, PA, Atlantic City, N.J., for Salvatore J. Merlino.
Robert F. Simone, Philadelphia, Pa., Milton E. Grusmark (argued), Miami, Fla., for Nicodemo Scarfo.
Robert E. Welsh, Jr. (argued), Philadelphia, Pa., for Joseph Ciancaglini.
Michael M. Baylson, U.S. Atty., Frank J. Marine (argued), Lead Appellate Atty., U.S. Dept. of Justice, Washington, D.C., Joel M. Friedman, David E. Fritchey, Arnold H. Gordon, Louis R. Pichini, Albert J. Wicks, Asst. U.S. Attys., U.S. Dept. of Justice, Philadelphia Strike Force, Philadelphia, Pa., for the U.S.
Before BECKER, GREENBERG and GARTH, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge
TABLE OF CONTENTS
I. INTRODUCTION 1097
II. THE FACTS 1097
A. MURDERS AND ATTEMPTED MURDERS 1099
B. ILLEGAL GAMBLING OPERATIONS 1101
C. THE SHAKEDOWN OPERATION 1102
III. DISCUSSION 1102
A. CONSTITUTIONALITY OF THE RICO STATUTE 1102
B. SUCCESSIVE PROSECUTIONS 1105
1. Dual Sovereignty: Successive Prosecutions for the Falcone 1105
and Testa Murders
2. Successive Federal Prosecutions of the Rouse Extortion 1107
3. Successive RICO Prosecutions of Joseph Ciancaglini 1112
C. SENTENCING ISSUES 1115
1. Consecutive Sentences for RICO Conspiracy and Substantive 1115
Offenses
2. Consecutive Sentencing of the Narduccis following state 1117
life sentences for the D'Alfonso murder
D. PROSECUTORIAL MISCONDUCT 1120
1. Improper Prosecutorial Vouching 1120
2. Other Prosecutorial Misconduct 1127
E. SUFFICIENCY OF THE EVIDENCE 1128
1. Virgilio 1129
2. Ciancaglini 1133
F. CHALLENGES TO THE INDICTMENT 1134
1. Alternative Theories on Murder Predicates and Inclusion of 1134
Conspiracies as Predicate Acts in RICO Conspiracy Charge
2. Duplicitous Pleading 1135
3. Claim of Fatal Variance 1136
G. IMPLICATION OF SCARFO'S ATTORNEY IN ROUSE EXTORTION 1137
1. Anthony Pungitore's Claim of Joint Representation 1139
2. Prejudicial Effect on Scarfo's Co Defendants 1141
H. CHALLENGES TO THE JURY INSTRUCTIONS 1144
1. Instructions Regarding Reasonable Doubt 1144
2. Instructions Regarding RICO and Co Conspirator Liability 1145
I. EVIDENCE QUESTIONS 1148
1. Expert Testimony, Special Agent James Kossler 1148
2. Reference to D'Alfonso Murder 1149
3. Evidence of Iannece's Flight 1150
IV. CONCLUSION 1152
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These consolidated appeals are the latest saga in the government's dismantling of the Philadelphia branch of La Cosa Nostra. Following a ten week trial which concluded on November 19, 1988, in the Eastern District of Pennsylvania, appellants, all members of the Nicodemo Scarfo crime family, were found guilty of conspiring to participate and participating in the affairs of an enterprise through a pattern of racketeering activity and, in some cases, through the collection of unlawful debts, in violation of RICO, 18 U.S.C. Secs. 1962(d) and (c). 1
In addition, Joseph Pungitore was convicted of participating in a conspiracy to distribute methamphetamine and Nicodemo Scarfo, Salvatore Merlino, and Joseph Ciancaglini were convicted of possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1). 2 Scarfo, Merlino and Joseph Pungitore, also were convicted of engaging in illegal sports bookmaking, in violation of 18 U.S.C. Sec. 1955. Finally, Francis Iannarella, Jr. and Salvatore Scafidi were convicted of conducting an illegal lottery business, in violation of 18 U.S.C. Sec. 1955(b). Appellants filed post trial motions which were denied by the district court. United States v. Scarfo, 711 F.Supp. 1315 (E.D.Pa.1989). These appeals followed.
We are bound, after a jury has delivered a guilty verdict, to interpret the evidence in a light most favorable to the government. With that in mind, we offer the following background facts.
The enterprise involved in this case was part of a nationwide criminal organization commonly known as the Mafia or "La Cosa Nostra." 3 La Cosa Nostra (LCN) is headquartered in New York and headed by a commission of eleven "bosses," who in turn direct the illegal activities of regional organized crime "families." The national scope of the Mafia is demonstrated by the fact that of its eleven bosses five are from New York City and six are from other cities throughout the country. The Mafia seems
to operate a government parallel to that in Washington, although as will be seen changes in its power structure are far more abrupt. Tr. 10/26/88 at 178. The 60 member Scarfo crime family involved here covers Mafia operations in Eastern Pennsylvania and much of New Jersey. Id.
A crime family is a highly structured criminal enterprise with a well defined chain-of-command. At the apex of the family's hierarchy is the "boss," who carries sole authority to approve murders and induct new members into the family. Tr. 10/26/88 at 178. A "consigliere" and "underboss" comprise the next tier in the family's organizational hierarchy. Id. at 178. The consigliere functions as an advisor to the boss and assists in the settlement of disputes among members, while the underboss oversees the family's illegal endeavors when the boss is unavailable and conveys orders to members. Under the consigliere and underboss are the "capos" or "captains," who control "crews" or "regimes" of "soldiers," otherwise known as "made men." The soldiers, in turn, sponsor various "associates," who are best described as criminal colleagues of the family who, for various reasons, have not been formally initiated into its ranks.
The criteria for becoming a member of the Scarfo family are somewhat daunting. To qualify, an aspiring associate must be a male of Italian descent who has participated in a murder pursuant to the boss's order. Tr. 10/10/88 at 80, 90. A primary incentive for joining the family is that the soldier then commands considerable respect from non-Mafia criminals, as his illegal endeavors are backed by "the strength of the Mafia," that is, its well-founded reputation for achieving its objectives through violent means. Tr. at 10/26/88 at 201. Indeed, its members recognize it as "a second government." Id. The soldier also becomes privy to the family's "political" and "union" connections. Id. at 200-01. As Thomas DelGiorno put it, becoming a ranking member of the family means the "difference of being in the major leagues and minor leagues as far as...
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